U.S. v. Holm

• Decision Date: 07 January 1988
• Docket Number: No. 86-5374,86-5374
• Citation: 836 F.2d 1119
• Parties: 24 Fed. R. Evid. Serv. 822 UNITED STATES of America, Appellee, v. David Scott HOLM, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1119

836 F.2d 1119

24 Fed. R. Evid. Serv. 822

UNITED STATES of America, Appellee, v. David Scott HOLM, Appellant.

No. 86-5374.

United States Court of Appeals Eighth Circuit.

Submitted June 9, 1987.

Decided Jan. 7, 1988.

John Sheehy, Minneapolis, Minn., for appellant.

James E. Lackner, Asst. U.S. Atty., Minneapolis, Minn., for appellee.

Before McMILLIAN, Circuit Judge, FAIRCHILD, ^* Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

The single issue presented in this appeal is whether the government established that David Scott Holm had constructive possession of cocaine and marijuana found in a house occupied by Timothy Eisenreich. Holm was convicted of distributing cocaine (Count I) and of possession of cocaine and marijuana with intent to distribute (Count III), both in violation of 21 U.S.C. Sec. 841(a)(1) (1982). On this appeal he attacks only the sufficiency of the evidence as to the latter conviction. We are satisfied that there was sufficient evidence in the record to establish Holm's constructive possession of the drugs found in the Eisenreich house, and accordingly affirm the judgment entered by the district court on Count III. ¹

Beginning in April, 1985 an undercover deputy sheriff, Thomas Rainville, made several purchases of marijuana and cocaine from Gregory Johnson. On May 17, 1985 Johnson offered to sell Rainville an ounce of cocaine, and Rainville went to Johnson's apartment to negotiate the deal. Johnson described his source as someone he went to high school with and knew well, who now lived in Florida and traveled back and forth between Florida and Minnesota. The government offered evidence that David Holm lived in a Florida apartment, and that he made frequent trips between Miami and Minneapolis. While in Johnson's apartment, Rainville heard Johnson receive a call from an acquaintance named Dave. When Johnson hung up he indicated that Dave was his source and that the deal was set. He said that Dave was staying at the house of a friend named Tim and they could get the cocaine there. A pen register on Johnson's phone revealed that Johnson had called the Richfield, Minnesota residence of Tim Eisenreich some three times between the time that he first offered Rainville the sale and Rainville's arrival at his apartment. Johnson testified that Eisenreich was at work on the afternoon of May 17, 1985 and could not carry out the deal, but that Holm said he would sell Johnson the cocaine. Johnson then drove to the house of Tim Eisenreich, followed by Rainville and under surveillance by other deputy sheriffs. At Johnson's request, Rainville stopped some distance from the house, but the surveillance officers drove on and saw a new Ford pick-up truck registered to David Holm parked in Eisenreich's driveway. Johnson testified that Holm sold him the cocaine in the basement of the Eisenreich house. Holm and Johnson were the only persons known to be in the house at that time. Johnson then left the Eisenreich house and returned to his apartment, where he sold the cocaine to Rainville. On the basis of these events, Holm was convicted of distributing cocaine in violation of 21 U.S.C. Sec. 841(a)(1).

After completing the May 17 transaction, Rainville expressed interest in purchasing larger quantities of cocaine. Johnson told him that his source, Dave, was returning to Florida and would have more cocaine in the next week. The evidence showed that David Holm left Minneapolis for Florida sometime after the May 17 transaction, but that he did not return until June 5, when he again stayed at the Eisenreich house. In the intervening period, Johnson had no drugs to sell to Rainville. On June 6, however, Johnson offered to sell Rainville two ounces of cocaine. He went to Eisenreich's house to obtain the drug, where Eisenreich made the sale. On this occasion Holm was not present. Johnson was arrested when he returned to Rainville and sold him the cocaine. Officers then secured the Eisenreich residence while Rainville obtained a warrant to authorize its search. A drug party was in progress. Drugs and paraphernalia were in plain view, including mirrors with cocaine on them, mannitol (a substance commonly used to dilute narcotics), a drug filter, and a scale, all of which were found on or near a bar in the basement. Two locked tool chests were also found in the basement. After the search warrant was obtained the locks on the chests were forced open. Four ounces of cocaine were found in one, and approximately five pounds of marijuana in the other. No keys to the lock were found in the house or on Tim Eisenreich's person. A spare bedroom was filled with clothes too large for Eisenreich, which Holm identified as his at the trial. A large briefcase was found in the bedroom which contained Holm's passport and a number of other items identifying Holm as the owner. Several notes were found in the room and in Holm's briefcase, including one on paper identical to that of a note found in the Eisenreich basement. These notes, referred to as "drug notes" by the prosecution, contained lists of initials correlated to quantity numbers. While waiting for Rainville to return with a search warrant, two officers stationed at the house saw Holm pull his truck into the driveway. When he noticed the officers, Holm immediately backed out and drove away at a high rate of speed.

In addition to the evidence described above, Holm testified that his income was derived from occasional construction and boat maintenance jobs, as well as money gifts from his grandmother and girlfriend. He did not have a regular full-time job. Yet his expenses were substantial. They included extensive travel, outright ownership of a new $15,000 Ford pick-up truck, mortgage payments on a Minneapolis townhome, rent for the Florida apartment, and flying lessons. He made six round trips to the Bahamas in an eleven month period, including two trips within one week. The government offered evidence that the Bahamas are a major drop-off point for drugs coming from South America to the United States. Between March and June, 1985 Holm also made five round trips between Miami and Minneapolis, including a round trip flight on March 30 and 31, 1985. The government offered evidence that a source of drug supplies from Miami generally makes a one day turnaround on a trip to Minneapolis. On the basis of this information, as well as the events of May 17 and June 6, 1985, Holm was convicted of possessing cocaine and marijuana with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1).

Holm does not challenge his conviction for selling cocaine to Johnson on May 17, 1985. His argument is that the evidence is insufficient to support his conviction for possession of cocaine and marijuana on June 6, 1985. In order to convict Holm on Count III, the government was required to prove beyond a reasonable doubt Holm's knowledge, possession, and intent to distribute the controlled substances in question. 21 U.S.C. Sec. 841(a). ² On this appeal, Holm does not challenge the jury's findings of knowledge or intent, nor does he dispute that possession may be proven constructively. United States v. Larson, 760 F.2d 852, 857 (8th Cir.), cert. denied, 474 U.S. 849, 106 S.Ct. 143, 88 L.Ed.2d 119 (1985); United States v. Caspers, 736 F.2d 1246, 1249 (8th Cir.1984). He claims only that the evidence was insufficient to show his constructive possession of the drugs seized at the Eisenreich house on June 6.

Holm correctly argues that a conviction for constructive possession requires the government to show that he had knowledge of the presence of contraband and control over it. Larson, 760 F.2d at 857; Caspers, 736 F.2d at 1249. Since he does not challenge the jury's finding as to his knowledge, Holm's sole contention is that he did not have control over the drugs seized on June 6 or control over Eisenreich. Holm argues that no direct physical evidence links him to the contraband, such as fingerprints on the seized containers, scales or other paraphernalia. He emphasizes that he was not present when the search occurred, that the drugs were not found in his room, and that no one identified him as their owner. Holm points to the narrowness of a possession charge, as contrasted with the broader offenses of aiding and abetting or conspiracy. However, constructive possession need not be proven by means of direct evidence. Circumstantial evidence is "intrinsically as probative as direct evidence" and may be the sole support for a conviction. United States v. McCrady, 774 F.2d 868, 874 (8th Cir.1985) (quoting United States v. Two Eagle, 633 F.2d 93, 97 (8th Cir.1980)). Nor was the government required to demonstrate Holm's presence at the search, the presence of drugs in his room, or his ownership of the seized drugs in order to prove that he was in constructive possession of them. See Caspers, 736 F.2d at 1249; United States v. Montes-Cardenas, 746 F.2d 771, 779 (11th Cir.1984); United States v. Hill, 589 F.2d 1344, 1349-50 (8th Cir.), cert. denied, 442 U.S. 919, 99 S.Ct. 2843, 61 L.Ed.2d 287 (1979). Further, if the government can prove constructive possession by circumstantial evidence, it is immaterial that a broader charge might have been available. Our sole concern is whether the evidence actually submitted was sufficient to sustain the jury's verdict on the crime charged.

In considering the sufficiency of the evidence, we must view the evidence in the light most favorable to the government, giving the government the benefit of all reasonable inferences which may logically be drawn therefrom. United States v. Resnick, 745 F.2d 1179, 1185 (8th Cir.1984) (citations omitted). The evidence need not exclude every reasonable hypothesis of innocence, but simply "be sufficient to convince the jury beyond a reasonable doubt that the defendant is guilty." United States v. Wells, 721 F.2d 1160, 1161 (8th Cir.1983) (quoting United States v. Taylor, 599 F.2d 832,...